CHICAGO
JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 115
                     (2D SERIES)




         FINANCIAL CONTRAC...
Financial Contract Design
                                            in the World of Venture Capital
                    ...
tal contracts have demonstrated a preference for convertible securities rather than short-term
secured credit, the paradig...
I. THE ECONOMICS OF FINANCIAL INTERMEDIATION:
                               VENTURE CAPITALISTS VERSUS BANKS
A. Informati...
intermediary instead of dispersed public investors, each entrepreneur avoids the risk of sensi-
tive information spilling ...
just their contract over time. This financing flexibility is extraordinarily valuable to start-up
firms, whose value is lo...
because the asymmetry in information regarding the venture capitalist’s probability of success
may not be present to begin...
lender. Therefore, like the preemptive rights of venture capitalists, banks effectively have a right
of first refusal on f...
supplement the effect of covenants and security interests. It might also provide access to soft in-
formation that cannot ...
agreements, banks typically retain their discretion to review periodically new information about
the borrower and refuse r...
tend to apply a discount in pricing securities issued by a firm. Debt is a fixed claim with liquida-
tion priority over st...
impending disclosure of positive information by assuming significant fixed obligations, some-
times with periodic interest...
erations.32 Therefore, while the debt component of the security may serve to minimize the initial
discount upon issue of t...
Gompers and Lerner propose, however, that the supply of venture capital is inelastic be-
cause of the substantial fixed co...
vertible securities, which the authors do not focus on. There are undoubtedly other significant
contracting innovations th...
Chicago Working Papers in Law and Economics
                                      (Second Series)

1.    William M. Landes...
32.   Geoffrey P. Miller, Das Kapital: Solvency Regulation of the American Business Enterprise
      (April 1995).
33.   R...
60.   John R. Lott, Jr., How Dramatically Did Women’s Suffrage Change the Size and Scope of
      Government? (September 1...
88.    Matthew D. Adler and Eric A. Posner, Implementing Cost-Benefit Analysis When Prefer-
       ences Are Distorted (No...
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FINANCIAL CONTRACT DESIGN IN THE WORLD OF VENTURE CAPITAL

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FINANCIAL CONTRACT DESIGN IN THE WORLD OF VENTURE CAPITAL

  1. 1. CHICAGO JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 115 (2D SERIES) FINANCIAL CONTRACT DESIGN IN THE WORLD OF VENTURE CAPITAL George G. Triantis Forthcoming University of Chicago Law Review, v68, Winter 2001, p.305 © University of Chicago, 2001 This paper can be downloaded without charge at: The Chicago Working Paper Series Index: http://www.law.uchicago.edu/Publications/Working/index.html The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=258392
  2. 2. Financial Contract Design in the World of Venture Capital George G. Triantis† The Venture Capital Cycle. Paul Gompers and Josh Lerner. MIT, 1999. Pp ix, 375. INTRODUCTION Over the past decade, venture capital is credited with fueling economic growth, cultural change, and financial exuberance. Technological advances have dramatically reduced the cost of information, with a tremendous economic impact. In the financial sphere, venture capital is re- garded as the frontier of innovation, liberated from the regulation and precedents of traditional markets. Therefore, the time may be ripe to evaluate whether valuable financial innovation has taken place in fact. In The Venture Capital Cycle, Professors Paul Gompers and Josh Lerner as- semble an empirical examination of various aspects of venture capital financing in a highly in- formative and thought-provoking volume. Their analyses and results provide material with which we might assess the contributions of venture capitalists to the design and understanding of financial relationships. Financial economists regard much of security design as the task of minimizing the cost of information. Financial intermediaries play important roles in bridging information asymmetries and monitoring entrepreneurs on behalf of their investors. Gompers and Lerner focus on the venture capital partnership as the intermediary between investors and high-technology start- ups. The venture capitalist’s counterpart in the old economy is the commercial bank. The au- thors describe a venture capital cycle that is functionally very similar to the relationship be- tween banks and their borrowers.1 Both intermediaries finance start-ups until these firms estab- lish reputations that enable them to raise capital in public markets, at which time the intermedi- aries withdraw their investments and either return them to their investors or recycle them in new start-ups. The authors imply that this cycle is somehow unique to venture capital and that venture capitalists have developed novel approaches to resolving information problems. How- ever, I suggest below that the techniques they describe (such as restrictive covenants, redemp- tion rights, and staged investments) have functional counterparts in bank financing. The impor- tant distinction lies instead in a feature that Gompers and Lerner do not discuss:2 Venture capi- † Seymour Logan Professor of Law, The University of Chicago. 1 “Venture capital can be viewed as a cycle that starts with the raising of a venture fund; proceeds through the investing in, monitoring of, and adding value to firms; continues as the venture capitalist exits successful deals and returns capital to their investors; and renews itself with the venture capitalist raising additional funds” (pp 3–4). A significant difference between the two cycles may be the limited term of the venture capi- talist partnership that compels the distribution to investors, who then choose whether to reinvest with the same general partner in a new fund. 2 The book does not include the work on convertibles by one of the authors. See Paul A. Gompers, An Examination of Convertible Securi- ties in Venture Capital Investments, Harvard Business School Working Paper (April 1997). 1
  3. 3. tal contracts have demonstrated a preference for convertible securities rather than short-term secured credit, the paradigmatic financial security held by banks.3 Part I reviews the informational challenges of financial contracting, particularly the prob- lems associated with information asymmetry and agency costs. Professors Gompers and Lerner identify several contractual patterns that address these problems in venture capital contracts. Part I compares these features with those of conventional bank financing and suggests that none of the techniques adopted by venture capitalists is particularly novel. Instead, they have close functional parallels in bank financing of similarly situated firms. Part II turns to the most sig- nificant distinction between much of venture capital and bank financing: banks hold senior, short-term debt and venture capitalists hold convertible securities. This contrast is relatively easy to explain. Banks are prevented by law from holding equity interests.4 High-technology start-ups have low liquidation values and volatile going concern values that compel them to of- fer equity-linked securities to their investors. Part II reviews the advantages of convertibles as analyzed in finance scholarship and thereby explains why these securities are more distinctive to venture capital than the contract features examined by Gompers and Lerner. Although Professors Gompers and Lerner focus on the venture capital cycle as a solution to information and incentive problems, they also suggest that venture capital contracting may not always be efficient. Specifically, they argue that the supply of venture capitalists is slow to ad- just to fluctuations in demand (p 4). During periods of heightened demand and capital inflows to venture capital partnerships, general partners negotiate a compensation premium in the form of diluted contractual restrictions on the extraction of private benefits, instead of a larger share of the monetary returns (pp 31–33). The authors demonstrate an empirical association between periods of high demand and less restrictive covenants in limited partnership agreements (pp 45–48). Part III of this Review argues, however, that their hypothesis rests on a set of tenuous theoretical premises. In particular, venture capitalists are unlikely to exercise their enhanced bargaining power (if any) in times of heightened investor demand by contracting for ineffi- ciently weak constraints on their activity rather than higher monetary compensation. In light of the sophistication of most investors in venture capital partnerships, the authors’ suggestion that covenant dilution is less transparent than changes in profit sharing arrangements seems im- plausible. An alternative explanation for their empirical finding is that high investor demand is correlated with positive economic conditions and low risks of failure. These, in turn, suggest re- duced incentive for misbehavior by general partners and greater returns from preserving their flexibility. 3 Steven N. Kaplan and Per Stromberg, Financial Contracting Theory Meets the Real World: An Empirical Analysis of Venture Capital Contracts, University of Chicago Working Paper (April 1999); William A. Sahlman, The Structure and Governance of Venture-Capital Organiza- tions, 27 J Fin Econ 473 (1990). 4 12 USC § 24(7) (1994 & Supp 1998). However, the Gramm-Leach-Bliley Financial Modernization Act, Pub L No 106-102, 113 Stat 1338 (1999), codified in scattered sections of title 12, now allows banks to form “financial holding companies.” A financial holding company may underwrite and deal in securities, and it may acquire equity interests incidental to these financial activities. 2
  4. 4. I. THE ECONOMICS OF FINANCIAL INTERMEDIATION: VENTURE CAPITALISTS VERSUS BANKS A. Information and Agency Problems In the jargon of economics, financial contracts are incomplete. They are entered into in un- certain environments, and they fail to exploit even available information (for example, probabil- ity distributions) because of two obstacles. First, some information is observable by only one party (the entrepreneur) who cannot credibly communicate it to others (information asymme- try). Second, the parties cannot control post-financing behavior by contract because either the behavior itself or future states of the world cannot be verified by third party arbiters (agency problems). These two problems motivate the design of financial contracts. Suppose that an entrepreneur seeks start-up financing from an investor. The entrepreneur has information about the technological and economic prospects of the proposed venture, but a portion of that information is too soft to be communicated to investors in a credible manner. As a result, the investor’s ability to distinguish among entrepreneurs is impaired and the investor will tend to assume the worst case scenario that is consistent with observable information. This information asymmetry increases the entrepreneur’s cost of capital. When the economic environment is uncertain, the ability to adjust the venture over time in light of new information is a valuable asset. For example, it may become efficient to expand or contract the venture, to accelerate or decelerate its development, or to abandon it. These options would seem to be best placed in the hands of the most informed party, the entrepreneur. After the investor has committed her capital to the venture, however, the entrepreneur maximizes his private benefits from control without regard to the investor’s interests. This incentive cannot be controlled by contract because the judicial identification of a substantial portion of inefficient private benefit extraction relies on facts that are not verifiable. For example, entrepreneurs are inclined to continue and expand their ventures even when their contraction or termination is ef- ficient. Yet, it is difficult for the parties to specify, and the courts to verify, those states of the world in which the venture should be expanded or contracted. Therefore, with respect to information that is privately held by the entrepreneur, the parties face a difficult choice among financing contracts. Due to the underlying uncertainty and infor- mation asymmetry, the parties cannot specify in verifiable terms the efficient actions of the en- trepreneur in every possible future state of the world. If the entrepreneur has unfettered discre- tion to react to changes in information, the gains from flexibility are offset by agency costs. If, however, the discretion is removed from the entrepreneur and left with the investor, the value of the flexibility is compromised by the inferior information of the investor. In addition, the in- vestor may use her discretion to exploit the cost to the entrepreneur of switching financing un- expectedly in midstream, in order to renegotiate and extract a higher share of the return from the venture. B. Financial Intermediation Financial intermediaries attenuate the information obstacles impeding the financing of start-up ventures in five ways. First, intermediaries exploit economies of specialization, scale, and scope in the gathering and processing of information. In addition, by disclosing to a single 3
  5. 5. intermediary instead of dispersed public investors, each entrepreneur avoids the risk of sensi- tive information spilling to other contracting partners and to competitors. Thus, intermediaries can bridge some of the information asymmetry that exists between entrepreneur and investor. The intermediaries apply this information to distinguish more finely among entrepreneurs of varying quality and to police them after releasing the funds. Although intermediation is costly, the entrepreneur may benefit from a net decrease in the cost of capital. Second, investment ana- lysts and advisors may underinvest in information production because they do not retain all the benefits of their efforts. Their advice can easily pass to investors who do not pay for it, and all stakeholders benefit from the resulting discipline imposed on the entrepreneur. In contrast, fi- nancial intermediaries take a stake in the entrepreneur’s venture and thereby capture a larger portion of the gains from information production.5 Third, the entrepreneur can renegotiate financing terms with a single intermediary at lower cost than if he were financed under separate contracts with numerous investors.6 For example, the parties may need to renegotiate conditions under which the entrepreneur must liquidate the firm or pursuant to which the intermediary will contribute additional capital. However, the su- perior information of the intermediary enhances its ability to hold up the entrepreneur in these renegotiations: the intermediary has knowledge of the entrepreneur’s sunk investments and the cost of obtaining alternative financing from another source.7 Fourth, a longer term relationship between intermediary and entrepreneur enhances the economies of information production and mitigates the risk of opportunistic behavior by either party. The relationship, and the prospect of its continuance, allows the intermediary and entrepreneur to react quickly to changes in in- formation in order to exploit real options. Fifth, the intermediary’s future profits depend on its building and preserving a reputation, and this further constrains opportunism by the interme- diary. Banks and venture capitalists are two types of financial intermediaries between investors and start-up organizations. These organizations are too young, too volatile, and have too little of a track record to raise capital directly from investors in public markets. Each intermediary en- joys superior access to relevant information relative to its respective investors, partly because each has other links to the entrepreneur. For example, both intermediaries are important sources of financial and strategic advice. Banks provide a host of other services, particularly demand deposit accounts, that yield significant information about the entrepreneur’s activities and financial condition.8 Moreover, the parties to bank lending or venture capital financing can exploit the information observable by the intermediaries and their ongoing relationship to ad- 5 Hayne E. Leland and David H. Pyle, Informational Asymmetries, Financial Structure, and Financial Intermediation, 32 J Fin 371, 383 (1977). Some benefits are nevertheless externalized because other investors can observe the intermediary’s investment. For example, there is evi- dence that the stock market responds to new loans and renewals. However, the bank can extract the value of this certification from its borrower, who enjoys the lower cost of capital. See, for example, Matthew T. Billett, Mark J. Flannery, and Jon A. Garfinkel, The Effect of Lender Identity on a Borrowing Firm’s Equity Return, 50 J Fin 699 (1995); Scott L. Lummer and John J. McConnell, Further Evidence on the Bank Lending Process and the Capital-Market Response to Bank Loan Agreements, 25 J Fin Econ 99 (1989); Christopher James, Some Evidence on the Uniqueness of Bank Loans, 19 J Fin Econ 217 (1987). 6 Clifford W. Smith, Jr. and Jerold B. Warner, On Financial Contracting: An Analysis of Bond Covenants, 7 J Fin Econ 117, 151–52 (1979). 7 For an analysis in the case of banks, see Raghuram G. Rajan, Insiders and Outsiders: The Choice between Informed and Arm’s-Length Debt, 47 J Fin 1367 (1992). 8 Mitchell A. Petersen and Raghuram G. Rajan, The Benefits of Lending Relationships: Evidence from Small Business Data, 49 J Fin 3, 8, 14–16 (1994). 4
  6. 6. just their contract over time. This financing flexibility is extraordinarily valuable to start-up firms, whose value is locked in growth options, and who produce too little cash flow or earn- ings to have internal capital at their disposal. However, intermediaries remain less informed than the entrepreneurs and therefore do not completely resolve the incentive problems caused by the self-interest of entrepreneurs. There- fore, there are returns to innovation in intermediary-entrepreneur contracts that are explored below. The investor-intermediary contract is affected by the same types of information obstacles that impair the intermediary-entrepreneur relationship: (1) the intermediary has private infor- mation about its portfolio and (2) it has incentives to act in a self-interested manner, sometimes contrary to the interests of investors, that cannot be simply controlled by contract. Gompers and Lerner indicate, for example, that venture capitalists may skew investments in order to enhance their personal reputations and experience in specialty areas, such as leveraged buyouts, with a view to raising a new fund in those markets (pp 31, 42). Bankers may have the same types of aspirations. The mechanisms that intermediaries use to reduce these agency problems are sim- ply versions of those used in their contracts with entrepreneurs. The important difference for our comparison is that bank deposits are insured by the Federal Deposit Insurance Corporation, and banks are policed by federal bank regulators. This obviates the need for privately negoti- ated terms between the bank and its depositors. Gompers and Lerner observe that venture capital partnership agreements address informa- tional concerns through a combination of compensation design and restrictions on verifiable components of the inefficient behavior.9 Thus, they reveal that covenants in venture capital lim- ited partnership agreements restrict the types of investment and the amount that may be in- vested in any given venture (pp 38, 41). Covenants also restrict the size of funds and the partici- pation of venture capitalists in other partnerships (p 41). The explicit compensation of venture capitalists is a combination of a fixed management fee (usually, a percentage of the fund’s capi- tal or assets) and a variable performance-based return (a percentage of the profits). The function of the variable component might be to establish incentives to promote effort or to signal the qualities of the venture capitalist—but not both. Gompers and Lerner reveal that greater vari- ability is found in the compensation of older, established venture capitalists than their younger counterparts (pp 57–58). They explain this result on the basis that new venture capitalists are sufficiently motivated by a desire to develop a reputation, such that the marginal incentive im- provement from performance-based returns is outweighed by the marginal increase in the risk- bearing cost borne by risk averse managers (p 81). In contrast, senior venture capitalists with es- tablished reputations may be in their final fund and therefore more responsive to performance- based compensation. Gompers and Lerner note that their data belie the alternative hypothesis that younger ven- ture capitalists might signal their abilities by accepting a larger portion of their payoff in vari- able compensation (p 81). In contrast, the abilities of established venture capitalists are revealed in their track records. The authors suggest provocatively that the signaling hypothesis may fail 9 In the context of venture capital partnerships, Gompers and Lerner suspect that the organizational structure of the intermediary may not be an important factor in its success. For example, they find that venture funds sponsored by corporations (implicitly, intermediaries between the corporate shareholders and entrepreneurs) achieve returns that are as good as those of venture capital partnerships, especially when they focus their investments in areas of strategic overlap with their parent firm (pp 119–20). 5
  7. 7. because the asymmetry in information regarding the venture capitalist’s probability of success may not be present to begin with. They conjecture that young venture capitalists may not be any better at predicting their abilities than their investors are (pp 81–82).10 C. Venture Capital and Bank Financing Compared The contract between intermediary and entrepreneur is of greater interest for the purposes of this Review. The bulk of venture capital, and certainly the bulk of successful venture capital, is invested in the high-technology sector. The value of these high-technology companies is in their growth options rather than in their marketable assets. These companies are characterized by high market-to-book values, low liquidation values, low ratios of tangible to total assets, high research and development (“R&D”) investments, and negative cash flows. Information asym- metries are more severe, and fewer factors are observable, much less verifiable. Furthermore, in the absence of tangible assets, the opportunity for misbehavior is greater, and monitoring is more difficult. Therefore, the contracting task appears more formidable in the industries fi- nanced by venture capital rather than bank lending. Nevertheless, the financial contracts of banks and venture capitalists are strikingly similar in design, with the notable exception of conversion rights discussed in the next Part. The most common venture capital security is a convertible preferred stock or subordinated debenture that is either convertible into common stock or accompanied by warrants for the purchase of com- mon stock. Start-up firms often have negative earnings or cash flows in their early stages, and therefore the security typically does not provide for mandatory periodic payment of either in- terest or dividends. Its liquidation rights are senior to common stock, but sometimes junior to other creditors of the start-up firm. The convertible security contains restrictive covenants, whose violation triggers the right of the venture capitalist to redeem its investment. In addition, venture capitalists often hold majority voting rights and representation on the board of direc- tors. In their recent empirical work, Professors Kaplan and Stromberg observe that many ven- ture capital contracts condition control rights on contingencies such as the attainment of per- formance milestones.11 Venture capitalists are often given preemptive rights to participate in fu- ture rounds of financing (for example, to maintain their pro rata share of the equity in their start-up venture). In contrast, banks hold senior or secured short-term debt. These contracts are typically in the form of a line of credit that finances working capital and term loans that finance capital in- vestments. Bank borrowers typically enjoy more fruitful cash flow than technology start-ups and therefore are more likely to agree to make periodic interest payments. The security interest covers most of the assets of the start-up, including not only tangible collateral such as equip- ment and inventory, but also intangibles such as patents and receivables. In light of this broad priority, the borrower often finds it difficult to obtain funding for future projects from another 10 Gompers and Lerner explain that [t]he venture capital industry may require skills that were not used in venture capitalists’ previous employment . . . . [V]enture capitalists ar- gue that it is difficult to predict success of new partners in advance. Meanwhile, investors are sophisticated institutions that closely track performance. It is reasonable to expect that neophyte venture capitalists do not know their own investment abilities any better than their in- vestors do. (pp 81–82). 11 Kaplan and Stromberg, Financial Contracting Theory Meets the Real World at 21, 48 (cited in note 3). 6
  8. 8. lender. Therefore, like the preemptive rights of venture capitalists, banks effectively have a right of first refusal on future financing. Loan agreements have extensive covenants, the violation of which are events of default that trigger acceleration and foreclosure against the assets of the borrower. Like the redemption rights in venture capital securities, these enforcement rights permit the bank to withdraw its investment and compel the termination of the venture. A helpful perspective from which to compare venture capital and bank contracts is the manner in which they control the flexibility options of the venture: specifically, how they divide discretion with respect to these options between the entrepreneur and the intermediary in each case. The discretion of the entrepreneur is limited by restrictive covenants that prohibit, for ex- ample, liquidation, merger, sale of assets, borrowing, or payment of dividends, and other fun- damental changes. Violation triggers the right of the intermediary to withdraw its investment, through either the refinancing of the entrepreneur or liquidation of the firm. Therefore, the covenants effectively give the bank or venture capitalist veto power with respect to these deci- sions and require the entrepreneur to negotiate the ability to pursue the proscribed courses of action. As noted above, the superior information held by the intermediary facilitates these bar- gains, particularly when the relationship with the entrepreneur and reputational concerns con- trol the risk of opportunistic behavior. In bank financing, security interests complement covenants in minimizing agency costs. The foreclosure of collateral is much quicker than the judicial enforcement of unsecured debt. The sanction for covenant violation is accordingly more severe. In addition, two other features of secured debt further restrict the discretion of the entrepreneur to adjust the venture: Security interests generally follow collateral assets into the hands of transferees, and they generally grant first-in-time priority over subsequent lenders. As a result, they prevent the entrepreneur from pursuing private benefits by substituting assets or borrowing against collateral assets. Security interests thereby limit the flexibility of entrepreneurs to reallocate capital in order to maximize private benefits.12 However, they also threaten to prevent the efficient adjustments in the ven- ture in response to new information acquired by the entrepreneur. As in the case of overinclu- sive covenants, the entrepreneur may be required to negotiate the consent of the secured credi- tor to new financing.13 This obstacle is overcome to the extent that the creditor is an informed in- termediary in a relationship with the entrepreneur. Even without renegotiation, however, the restrictions of security interests are sufficiently textured to permit the sales of some assets (in the ordinary course) and some borrowing (for example, purchase money security). This permits an entrepreneur to make some efficient adjustments in the venture without being subject to the holdup of its secured lender.14 Although agency problems may be more acute in technology start-up firms, venture capi- talists cannot easily restrict opportunistic reallocation of capital through security interests be- cause of the paucity of significant tangible assets that can serve as collateral. Venture capitalists contract instead for voting control and representation on boards of directors, and use these powers to withdraw their investments by liquidation, refinancing, or other forced sale of the venture. Board representation might also offer a distinct governance lever to banks, which could 12 George G. Triantis, A Free-Cash-Flow Theory of Secured Debt and Creditor Priorities, 80 Va L Rev 2155, 2158–65 (1994). 13 Thomas H. Jackson and Anthony T. Kronman, Secured Financing and Priorities Among Creditors, 88 Yale L J 1143, 1173 (1979). 14 George G. Triantis, Financial Slack Policy and the Laws of Secured Transactions, 29 JLegal Stud 35 (2000). 7
  9. 9. supplement the effect of covenants and security interests. It might also provide access to soft in- formation that cannot be readily provided for in credit agreements. In fact, banks often do have representatives on the boards of their borrowers. Perhaps due to the specter of lender or fiduciary liability, bankers are less likely to sit on boards of smaller, more volatile firms. If banks were permitted to hold convertible securities, their interests would conflict less with those of the shareholders; they may consequently be more welcomed on boards by shareholders and some- what less at risk of liability.15 In venture capital and bank financing, the intermediary and entrepreneur have some flexi- bility in the timing of the investment. To the degree that they can postpone the commitment of the investor’s funds, they can contract in light of better information (both more and shared in- formation) and less uncertainty. Under less uncertainty, it is easier to control the behavior of the entrepreneur by contract. Of course, the cost of waiting may outweigh these benefits: in particu- lar, the venture may be undertaken by a competitor. However, if the cash requirements are di- visible over time, the parties may space or stage their contracts so that the funds are advanced only at the time they are needed. The strategy also minimizes the amount of free cash available to the entrepreneur and thereby reduces the scope for misbehavior. Both venture capitalists and banks contract over future financings. Venture capitalists often have preemptive rights to par- ticipate in future rounds of stock issues in order to preserve their share of the equity. Bank lend- ers hold blanket security interests over the assets of their borrowers that give them priority over future creditors and consequently deter financing from competitors.16 These rights, however, enhance the power of the venture capitalist or bank to hold up the entrepreneur in the negotia- tion of later rounds of funding. In this context as well as others, the relationship of the parties and the intermediaries’ concern with their reputations are crucial constraints against opportun- istic behavior. Venture capitalists stage their investments in entrepreneurs. Gompers and Lerner find that the duration of each stage is correlated with the industry ratio of tangible to total assets, and in- versely related to higher R&D intensities (pp 156–57). These variables reflect the portion of the venture’s value that is locked up in growth options, rather than tangible assets, and, in turn, in- dicate the degree of information asymmetry. In cases of more severe information obstacles, ven- ture financing is divided into a larger number of smaller staged investments. The age of the company is only sometimes a relevant variable. While it has a significantly positive impact on financing duration in the case of low-technology firms, it does not have a significant effect with high-technology firms. The authors speculate appropriately that asymmetries may tend to per- sist longer in high-technology firms, thereby increasing the value of delaying investment deci- sions (p 165). Banks preserve flexibility through a technique that is different in form, but very similar in effect. Banks sequence term loans and link them to asset acquisitions. Moreover, they provide working capital through lines of credit and lending commitments. Under the terms of these 15 Randall S. Kroszner and Philip E. Strahan, Bankers on Boards: Monitoring, Conflicts of Interest, and Lender Liability, J Fin Econ (forthcoming 2001), available online at <http://gsbwww.uchicago.edu/fac/randall.kroszner/research/bankers.pdf> (visited Nov 19, 2000). How- ever, lender liability seems to be concerned more with intracreditor conflict, rather than creditor-shareholder conflict. George G. Triantis and Ronald J. Daniels, The Role of Debt in Interactive Corporate Governance, 83 Cal L Rev 1073, 1096–1103 (1995). 16 Robert E. Scott, A Relational Theory of Secured Financing, 86 Colum L Rev 901, 926–27 (1986). Scott notes that this security interest gives the lender control over the future financing prospects and thereby encourages investment by the lender in nurturing the borrower. 8
  10. 10. agreements, banks typically retain their discretion to review periodically new information about the borrower and refuse requests to draw on credit lines.17 Renegotiation lies at the heart of fi- nancing flexibility in relational bank lending, whether it concerns the waiving of events of de- fault, the extension of fresh financing, or the rescheduling of payment obligations. The same is true in the venture capital relationships where the parties negotiate sequential rounds of financ- ing, covenant violations, or the allocation of voting rights and seats on the board. In both con- texts, the parties exploit real options by delaying decisions until some uncertainty is resolved and by controlling the incentives to renegotiate opportunistically within their ongoing relation- ship.18 The value and role of intermediaries diminish with the severity of information asymmetry and agency problems, and entrepreneurs eventually seek to substitute direct investment from investors. The direct public financing is raised by the sale of securities that carry more standard- ized terms than the contracts with former intermediaries. In the case of bank lending, mature borrowers who have built a reputation for repaying debts can issue debt directly to investors without an intermediary.19 Venture capitalists exit in a similar fashion when the firm makes an initial public offering of its securities.20 In both cases, the reputation of the intermediaries serves a credentialing function that enhances the ability of the firm to access investors directly. The exit of the venture capitalist and the bank is followed by a new cycle of intermediate investment in another start-up. II. CONVERTIBLE SECURITIES The discussion in Part I concerns the information obstacles to efficient capital allocation and reallocation. An investor (or intermediary) is concerned about the expected return and risk of the entrepreneur’s proposed venture. The value of the venture depends on the ability to exploit flexibility in adjusting to new information: expanding or contracting, accelerating or decelerat- ing, shifting to a new venture or liquidating. The party with the best information to manage this flexibility is the entrepreneur because much of this information is not observable by investors, let alone verifiable. However, the entrepreneur has incentives to maximize private benefits and may not make efficient decisions. We have seen that governance tools such as covenants, liqui- dation rights, staged investments, voting rights, and representation on the board of directors contribute to realize the value of the various real options while containing agency problems. The design of the financial or cash flow rights is also important to maximizing flexibility and minimizing agency costs. There are several reasons why an entrepreneur with substantial private information may borrow rather than sell stock. The decision of an entrepreneur to issue a security may reflect his observation that investors overvalue the venture. Therefore, investors 17 In a much criticized opinion, the Court of Appeals for the Sixth Circuit reviewed a lender’s exercise of its discretion to refuse its bor- rower’s request to draw on a line of credit. K.M.C. Co, Inc v Irving Trust Co, 757 F2d 752, 760–63 (6th Cir 1985). Most courts, however, do not interfere with contractual rights of lenders to cut off financing. See, for example, Kham & Nate’s Shoes No. 2, Inc v First Bank of Whiting, 908 F2d 1351, 1357 (7th Cir 1990); In re Clark Pipe & Supply Co, 893 F2d 693, 700 (5th Cir 1990). 18 In the case of banks, this process is well described in Professor Scott’s work on relational secured financing. Scott, 86 Colum L Rev at 901 (cited in note 16). 19 Douglas W. Diamond, Monitoring and Reputation: The Choice between Bank Loans and Directly Placed Debt, 99 J Pol Econ 689, 713 (1991). 20 Sahlman, 27 J Fin Econ at 479 (cited in note 3). See also Bernard S. Black and Ronald J. Gilson, Venture Capital and the Structure of Capital Markets: Banks Versus Stock Markets, 47 J Fin Econ 243, 245 (1998). 9
  11. 11. tend to apply a discount in pricing securities issued by a firm. Debt is a fixed claim with liquida- tion priority over stock, which insulates its returns somewhat from the marginal risk of over- valuing the borrower. Therefore, the discount on debt is smaller than on equity contracts, and the entrepreneur may choose debt financing for that reason.21 In addition, outside equity inves- tors might be concerned that their entrepreneur may misrepresent or manipulate the reporting of cash flow or earnings in order to reduce their share of any distributions. A debtholder, in con- trast, is entitled to foreclose on the assets of the borrower if its fixed payment obligations are not met.22 Therefore, debt claims may also be preferable when earnings are not verifiable. Moreover, fixed interest payments remove free cash with which insiders might otherwise inflate their pri- vate benefits. By limiting the insider’s access to cash, these payment obligations may compel the termination of projects whose prospects have become unprofitable.23 Finally, short-term debt in particular signals that insiders view the firm’s prospects optimistically and expect to be able to refinance at a lower cost of capital when this information is revealed to the market.24 The value of debt securities and their ability to serve the functions described in the previ- ous paragraph are compromised in the financing of start-up technology ventures because (1) their value is found in growth opportunities and other real options rather than in tangible assets with significant liquidation values and (2) these ventures typically have negative earnings and cash flows. Therefore, venture capitalists invest in combinations of debt and equity interests. The most common security held by venture capitalists is a fixed claim (such as debt or preferred stock) with provisions for the conversion of this claim into common stock. Conventional con- vertible debt gives the security holder the option to trade its debt for common stock in the is- suer. The instrument defines the time during which the option may be exercised and also often grants to the issuer the right to call the debt in order to induce the convertible debt-holder to convert. In venture capital deals, conversion is triggered not by the exercise of an option, but by the occurrence of specified events or contingencies; notably upon a successful initial public of- fering of stock (defined by offering price, net proceeds, or otherwise). Convertible fixed claims may serve the following functions. First, like short-term debt, con- vertible debt also might defer the sale of equity until private information is revealed to the mar- ket.25 However, while short-term debt has a definite maturity, convertible debt defines periods within which the holder may convert, permits the issuer to force conversion by exercising its call privilege, or triggers mandatory conversion upon the occurrence of a qualifying initial pub- lic offering. Therefore, the time at which the favorable information is revealed does not have to be predicted with as much precision when convertible, rather than short-term, debt is used to defer the issuance of equity.26 In the meantime, the firm might also signal its confidence in the 21 Stewart C. Myers and Nicholas S. Majluf, Corporate Financing and Investment Decisions When Firms Have Information That Investors Do Not Have, 13 J Fin Econ 187 (1984). 22 Robert M. Townsend, Optimal Contracts and Competitive Markets with Costly State Verification, 21 J Econ Theory 265 (1979). 23 Michael C. Jensen, Agency Costs of Free Cash Flow, Corporate Finance and Takeovers, 76 Am Econ Rev No 2 323, 324 (1986). 24 Douglas W. Diamond, Debt Maturity Structure and Liquidity Risk, 106 Q J Econ 709 (1991); Mark J. Flannery, Asymmetric Information and Risky Debt Maturity Choice, 41 J Fin 19 (1986). 25 Diamond, 106 Q J Econ at 709 (cited in note 24). 26 Alexander J. Triantis and George G. Triantis, Conversion Rights and the Design of Financial Contracts, 72 Wash U L Q 1231, 1236–37 (1994). 10
  12. 12. impending disclosure of positive information by assuming significant fixed obligations, some- times with periodic interest or dividend liability, until it can reveal the favorable information.27 Second, the risk of debt in start-up technology firms is much greater than in conventional borrowers because of the inferior cash flow and liquidation value in the former case. If the debt- holder were to be compensated simply by a rate of interest, that rate would have to be very high. High interest rates exacerbate an adverse selection problem: the borrowers who are most likely to agree to pay high interest are the most risky ones. High interest rates also increase agency problems by intensifying the incentive of borrowers to choose more over less risky pro- jects. Although intermediation mitigates somewhat the underlying information asymmetry, lenders may nevertheless decline to lend funds to high-risk borrowers even at high interest rates.28 These adverse selection and incentive problems are avoided through convertible securi- ties that structure the return to the investor as a share of future gains in value rather than rights to fixed interest. Third, to the extent that they can control decisionmaking, the residual interests in leveraged companies have the incentive to increase the riskiness of the firm’s activities. This incentive may be controlled to some extent by covenants. However, as noted earlier, covenants employ proxies that are under- and overinclusive. To the extent that they are overinclusive, they must be rene- gotiated. If the information is still unobservable, renegotiation may be difficult. Moreover, the lender has hold-up potential, although this is mitigated in the case of intermediaries. To the ex- tent it remains unresolved, the hold-up potential is of greater concern when the borrower is likely to have many investment opportunities. Convertible securities offer an alternative mechanism for addressing the problems of risk alteration. They permit the venture capitalist to participate in the firm’s profits and consequently dampen the risk-taking incentives of the en- trepreneur who now shares the upside with the convertible security holder.29 At the same time, convertibles do not impede the exploitation of growth opportunities as do covenants.30 This so- lution, however, has limits: it does not prevent the exacerbation of risk alteration incentives when the debtor is insolvent or near insolvency and the conversion option is far out of the money. Fourth, a pure debt claim restricts the ability of the entrepreneur to obtain new capital without the consent of its creditors, particularly if it is senior or secured.31 On the other hand, a pure equity claim makes subsequent financing too easy. Convertibles offer a third approach be- tween giving discretion entirely to the entrepreneur and requiring renegotiation with the hold- ers of outstanding debt. If the venture succeeds in its early stages, it can compel the conversion of the venture capitalist’s claim into equity (for example, by meeting performance targets or executing a successful IPO). Upon the extinction of the debt, the entrepreneur is relieved of pe- riodic interest payment obligations and gains new capacity to borrow in order to finance his op- 27 Jeremy C. Stein, Convertible Bonds as Backdoor Equity Financing, 32 J Fin Econ 3, 9 (1992). 28 Joseph E. Stiglitz and Andrew Weiss, Credit Rationing in Markets with Imperfect Information, 71 Am Econ Rev 393 (1981). 29 Richard C. Green, Investment Incentives, Debt, and Warrants, 13 J Fin Econ 115 (1984); Robert A. Haugen and Lemma W. Senbet, Re- solving the Agency Problems of External Capital Through Options, 36 J Fin 629 (1981); Smith and Warner, 7 J Fin Econ at 141 (cited in note 6). 30 Marcel Kahan and David Yermack, Investment Opportunities and the Design of Debt Securities, 14 J L, Econ, & Org 136, 137 (1998). Kahan and Yermack present evidence that investment opportunities are negatively related to the incidence of covenants and positively associated with convertibility. 31 Stewart C. Myers, Determinants of Corporate Borrowing, 5 J Fin Econ 147 (1977), describes this problem of underinvestment or debt overhang. 11
  13. 13. erations.32 Therefore, while the debt component of the security may serve to minimize the initial discount upon issue of the security, the prospect of subsequent conversion restores the ability of the entrepreneur to obtain future debt financing in good states of the world from other sources. Of course, if the venture fails, the debt claim remains and may induce liquidation and termina- tion of the start-up firm. III. COMPARATIVE STATICS OF VENTURE CAPITAL PARTNERSHIP AGREEMENTS Professors Gompers and Lerner assert that cyclical changes in the demand for and supply of venture capitalists explain certain features of venture capital contracting. For example, as dis- cussed below, they assert that increases in demand lead to some dilution of the restrictions on the activities of venture capitalists in their partnership agreements (pp 31–32, 35–37). The au- thors imply that investors differentiate venture capital from the rest of capital markets and that heightened demand may yield not only supernormal returns, but also contracting inefficiencies. Gompers and Lerner observe that there are a small number of participants in venture capi- tal finance, and that the sector is significantly segmented by the size, industry focus, location, and reputation of venture capitalists (pp 31–32). They also suggest that the number of venture capitalists and venture capital organizations changes relatively slowly. The supply of venture capital services is rigid because of the time required to acquire the skills and the track record necessary to raise new venture capital (p 4). Moreover, the secondary market in limited partner- ship interests is thin (p 32). Therefore, they argue that an increase in demand among investors improves the bargaining power of venture capitalists and thereby causes a significant short-run bump in their returns (p 31). Venture capitalists receive two forms of compensation: their contractual share of portfolio profits and nonmonetary private benefits they can extract from the partnership. Gompers and Lerner hypothesize that, in light of inelastic supply, increases in demand lead to compensation increases primarily in the form of private benefits, through a dilution of the restrictions on the activities of venture capitalists (p 32). To support their claim, they empirically demonstrate a significant positive relationship between the restrictiveness of covenants on the one hand and, on the other hand, (1) capital inflows relative to the existing venture pool, (2) the proportion of investors who retain an investment manager, and (3) the total compensation of general partners (pp 45–47). Gompers and Lerner pay insufficient attention to explaining and justifying the premises of their thesis. It may therefore be useful to speculate what the more complete story would look like. Demand among investors for venture capital may increase when exogenous changes lead investors to value more highly the type of intermediation offered by venture capitalists, or when they acquire a greater taste for the risk-return profile of venture capital investing. This function is based on an assumption about product differentiation in the market for financial se- curities that, in turn, depends on the substitutability among intermediaries and the complete- ness of capital markets. Although banks might be incapacitated from filling the role of venture capitalists, their managers may well have the experience and mobility to do so. 32 David Mayers, Why Firms Issue Convertible Bonds: The Matching of Financial and Real Investment Options, 47 J Fin Econ 83 (1998). 12
  14. 14. Gompers and Lerner propose, however, that the supply of venture capital is inelastic be- cause of the substantial fixed costs of building track records and acquiring expertise. However, even if there is little substitutability across industry focus and location, there may be a consider- able amount of substitution across experience. It is not clear why these are all-or-nothing attrib- utes, rather than matters of degree. In particular, at any time, there are presumably individuals at different stages of developing track records and expertise. One might expect that investors would price different levels of experience and reputation and, in periods of heated demand, may be prepared to contract on more favorable terms with weaker candidates. Unless there are other barriers to entry, presumably the demand would lure new entrants who would command the lowest price and offer competition to the more experienced players. Suppose, however, that increases in the inflow of capital improved the bargaining power of venture capitalists. Would they extract their rents in the form of private benefits? One would not believe so if investors are sophisticated. Rather, venture capitalists would maximize their return by agreeing to efficient restrictions on their activities and by applying their bargaining power to capture a larger share of the monetary returns. Gompers and Lerner presume that venture capitalists may be able to exploit some lack of sophistication in their limited partners. In particular, they make two observations that are rele- vant to this premise. First, they say that covenants are less visible and therefore easier to change than monetary compensation, which seems to stick to an industry norm of an 80 to 20 percent division of profits (p 32). Second, covenants are likely to be less restrictive when investors are not represented by investment managers (p 46). Investment managers not only select the funds in which the investor (for example, pension fund) invests, but also often negotiate the terms and conditions of the partnership agreement. The authors imply that the supply of investment man- agers is also relatively rigid and, therefore, in high demand periods, investors may not use in- vestment managers (p 35). Investors, by themselves, may not fully comprehend the risk of pri- vate benefit extraction by venture capitalists and are therefore more likely to agree to diluted covenants. However, venture capital investors are generally institutions, which would be expected to understand agency problems and the importance of covenants. Even without advisors, they should at least have the competence to detect variations in covenant patterns. Therefore, al- though the stickiness of the 80-20 profit division remains puzzling, the authors’ empirical find- ings might be alternatively explained by the fact that heightened investor demand is correlated with economic growth and relatively low risks of failure. These, in turn, suggest both that agency problems are reduced and that the value of flexibility is enhanced. Therefore, in these periods, some covenants may be efficiently diluted to broaden the discretion of venture capital- ists. CONCLUSION Professors Gompers and Lerner have made the most extensive contributions to large- sample empirical study of venture capital financing. Yet, as they describe features of venture capital financing, a reader might doubt whether venture capitalists have innovated contracts that are significantly different from conventional securities in the old economy—particularly, bank financing. The distinctive feature of venture capital seems to be the greater use of con- 13
  15. 15. vertible securities, which the authors do not focus on. There are undoubtedly other significant contracting innovations that remain to be developed and tested, and substantial returns to be enjoyed in this respect in the next generation of venture capital security design. In the spirit of a growing portion of financial economic scholarship, the authors believe that the rational expectations model—and, particularly, the analysis of information asymmetries— fails fully to explain contracting patterns. Thus, they place a great deal of emphasis on the pos- sibility that the bargaining parties in noncompetitive markets may reach inefficient agreements. For reasons identified in this Review, however, they seem to fall short in making this case in the context of venture capital partnership agreements. Readers with comments should address them to: George G. Triantis Seymour Logan Professor of Law University of Chicago Law School 1111 East 60th Street Chicago, IL 60637 triantis@uchicago.edu 773-834-4068 14
  16. 16. Chicago Working Papers in Law and Economics (Second Series) 1. William M. Landes, Copyright Protection of Letters, Diaries and Other Unpublished Works: An Economic Approach (July 1991). 2. Richard A. Epstein, The Path to The T. J. Hooper: The Theory and History of Custom in the Law of Tort (August 1991). 3. Cass R. Sunstein, On Property and Constitutionalism (September 1991). 4. Richard A. Posner, Blackmail, Privacy, and Freedom of Contract (February 1992). 5. Randal C. Picker, Security Interests, Misbehavior, and Common Pools (February 1992). 6. Tomas J. Philipson & Richard A. Posner, Optimal Regulation of AIDS (April 1992). 7. Douglas G. Baird, Revisiting Auctions in Chapter 11 (April 1992). 8. William M. Landes, Sequential versus Unitary Trials: An Economic Analysis (July 1992). 9. William M. Landes & Richard A. Posner, The Influence of Economics on Law: A Quanti- tative Study (August 1992). 10. Alan O. Sykes, The Welfare Economics of Immigration Law: A Theoretical Survey With An Analysis of U.S. Policy (September 1992). 11. Douglas G. Baird, 1992 Katz Lecture: Reconstructing Contracts (November 1992). 12. Gary S. Becker, The Economic Way of Looking at Life (January 1993). 13. J. Mark Ramseyer, Credibly Committing to Efficiency Wages: Cotton Spinning Cartels in Imperial Japan (March 1993). 14. Cass R. Sunstein, Endogenous Preferences, Environmental Law (April 1993). 15. Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everyone Else Does) (April 1993). 16. Lucian Arye Bebchuk and Randal C. Picker, Bankruptcy Rules, Managerial Entrench- ment, and Firm-Specific Human Capital (August 1993). 17. J. Mark Ramseyer, Explicit Reasons for Implicit Contracts: The Legal Logic to the Japa- nese Main Bank System (August 1993). 18. William M. Landes and Richard A. Posner, The Economics of Anticipatory Adjudication (September 1993). 19. Kenneth W. Dam, The Economic Underpinnings of Patent Law (September 1993). 20. Alan O. Sykes, An Introduction to Regression Analysis (October 1993). 21. Richard A. Epstein, The Ubiquity of the Benefit Principle (March 1994). 22. Randal C. Picker, An Introduction to Game Theory and the Law (June 1994). 23. William M. Landes, Counterclaims: An Economic Analysis (June 1994). 24. J. Mark Ramseyer, The Market for Children: Evidence from Early Modern Japan (August 1994). 25. Robert H. Gertner and Geoffrey P. Miller, Settlement Escrows (August 1994). 26. Kenneth W. Dam, Some Economic Considerations in the Intellectual Property Protection of Software (August 1994). 27. Cass R. Sunstein, Rules and Rulelessness, (October 1994). 28. David Friedman, More Justice for Less Money: A Step Beyond Cimino (December 1994). 29. Daniel Shaviro, Budget Deficits and the Intergenerational Distribution of Lifetime Con- sumption (January 1995). 30. Douglas G. Baird, The Law and Economics of Contract Damages (February 1995). 31. Daniel Kessler, Thomas Meites, and Geoffrey P. Miller, Explaining Deviations from the Fifty Percent Rule: A Multimodal Approach to the Selection of Cases for Litigation (March 1995). 15
  17. 17. 32. Geoffrey P. Miller, Das Kapital: Solvency Regulation of the American Business Enterprise (April 1995). 33. Richard Craswell, Freedom of Contract (August 1995). 34. J. Mark Ramseyer, Public Choice (November 1995). 35. Kenneth W. Dam, Intellectual Property in an Age of Software and Biotechnology (No- vember 1995). 36. Cass R. Sunstein, Social Norms and Social Roles (January 1996). 37. J. Mark Ramseyer and Eric B. Rasmusen, Judicial Independence in Civil Law Regimes: Econometrics from Japan (January 1996). 38. Richard A. Epstein, Transaction Costs and Property Rights: Or Do Good Fences Make Good Neighbors? (March 1996). 39. Cass R. Sunstein, The Cost-Benefit State (May 1996). 40. William M. Landes and Richard A. Posner, The Economics of Legal Disputes Over the Ownership of Works of Art and Other Collectibles (July 1996). 41. John R. Lott, Jr. and David B. Mustard, Crime, Deterrence, and Right-to-Carry Concealed Handguns (August 1996). 42. Cass R. Sunstein, Health-Health Tradeoffs (September 1996). 43. G. Baird, The Hidden Virtues of Chapter 11: An Overview of the Law and Economics of Financially Distressed Firms (March 1997). 44. Richard A. Posner, Community, Wealth, and Equality (March 1997). 45. William M. Landes, The Art of Law and Economics: An Autobiographical Essay (March 1997). 46. Cass R. Sunstein, Behavioral Analysis of Law (April 1997). 47. John R. Lott, Jr. and Kermit Daniel, Term Limits and Electoral Competitiveness: Evidence from California’s State Legislative Races (May 1997). 48. Randal C. Picker, Simple Games in a Complex World: A Generative Approach to the Adoption of Norms (June 1997). 49. Richard A. Epstein, Contracts Small and Contracts Large: Contract Law through the Lens of Laissez-Faire (August 1997). 50. Cass R. Sunstein, Daniel Kahneman, and David Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law) (December 1997). 51. William M. Landes, Lawrence Lessig, and Michael E. Solimine, Judicial Influence: A Cita- tion Analysis of Federal Courts of Appeals Judges (January 1998). 52. John R. Lott, Jr., A Simple Explanation for Why Campaign Expenditures are Increasing: The Government is Getting Bigger (February 1998). 53. Richard A. Posner, Values and Consequences: An Introduction to Economic Analysis of Law (March 1998). 54. Denise DiPasquale and Edward L. Glaeser, Incentives and Social Capital: Are Home- owners Better Citizens? (April 1998). 55. Christine Jolls, Cass R. Sunstein, and Richard Thaler, A Behavioral Approach to Law and Economics (May 1998). 56. John R. Lott, Jr., Does a Helping Hand Put Others At Risk?: Affirmative Action, Police Departments, and Crime (May 1998). 57. Cass R. Sunstein and Edna Ullmann-Margalit, Second-Order Decisions (June 1998). 58. Jonathan M. Karpoff and John R. Lott, Jr., Punitive Damages: Their Determinants, Effects on Firm Value, and the Impact of Supreme Court and Congressional Attempts to Limit Awards (July 1998). 59. Kenneth W. Dam, Self-Help in the Digital Jungle (August 1998). 16
  18. 18. 60. John R. Lott, Jr., How Dramatically Did Women’s Suffrage Change the Size and Scope of Government? (September 1998) 61. Kevin A. Kordana and Eric A. Posner, A Positive Theory of Chapter 11 (October 1998) 62. David A. Weisbach, Line Drawing, Doctrine, and Efficiency in the Tax Law (November 1998) 63. Jack L. Goldsmith and Eric A. Posner, A Theory of Customary International Law (No- vember 1998) 64. John R. Lott, Jr., Public Schooling, Indoctrination, and Totalitarianism (December 1998) 65. Cass R. Sunstein, Private Broadcasters and the Public Interest: Notes Toward A “Third Way” (January 1999) 66. Richard A. Posner, An Economic Approach to the Law of Evidence (February 1999) 67. Yannis Bakos, Erik Brynjolfsson, Douglas Lichtman, Shared Information Goods (Febru- ary 1999) 68. Kenneth W. Dam, Intellectual Property and the Academic Enterprise (February 1999) 69. Gertrud M. Fremling and Richard A. Posner, Status Signaling and the Law, with Particu- lar Application to Sexual Harassment (March 1999) 70. Cass R. Sunstein, Must Formalism Be Defended Empirically? (March 1999) 71. Jonathan M. Karpoff, John R. Lott, Jr., and Graeme Rankine, Environmental Violations, Legal Penalties, and Reputation Costs (March 1999) 72. Matthew D. Adler and Eric A. Posner, Rethinking Cost-Benefit Analysis (April 1999) 73. John R. Lott, Jr. and William M. Landes, Multiple Victim Public Shooting, Bombings, and Right-to-Carry Concealed Handgun Laws: Contrasting Private and Public Law Enforce- ment (April 1999) 74. Lisa Bernstein, The Questionable Empirical Basis of Article 2’s Incorporation Strategy: A Preliminary Study (May 1999) 75. Richard A. Epstein, Deconstructing Privacy: and Putting It Back Together Again (May 1999) 76. William M. Landes, Winning the Art Lottery: The Economic Returns to the Ganz Collec- tion (May 1999) 77. Cass R. Sunstein, David Schkade, and Daniel Kahneman, Do People Want Optimal De- terrence? (June 1999) 78. Tomas J. Philipson and Richard A. Posner, The Long-Run Growth in Obesity as a Func- tion of Technological Change (June 1999) 79. David A. Weisbach, Ironing Out the Flat Tax (August 1999) 80. Eric A. Posner, A Theory of Contract Law under Conditions of Radical Judicial Error (August 1999) 81. David Schkade, Cass R. Sunstein, and Daniel Kahneman, Are Juries Less Erratic than Individuals? Deliberation, Polarization, and Punitive Dam- ages (September 1999) 82. Cass R. Sunstein, Nondelegation Canons (September 1999) 83. Richard A. Posner, The Theory and Practice of Citations Analysis, with Special Reference to Law and Economics (September 1999) 84. Randal C. Picker, Regulating Network Industries: A Look at Intel (October 1999) 85. Cass R. Sunstein, Cognition and Cost-Benefit Analysis (October 1999) 86. Douglas G. Baird and Edward R. Morrison, Optimal Timing and Legal Decisionmaking: The Case of the Liquidation Decision in Bankruptcy (October 1999) 87. Gertrud M. Fremling and Richard A. Posner, Market Signaling of Personal Char- acteristics (November 1999) 17
  19. 19. 88. Matthew D. Adler and Eric A. Posner, Implementing Cost-Benefit Analysis When Prefer- ences Are Distorted (November 1999) 89. Richard A. Posner, Orwell versus Huxley: Economics, Technology, Privacy, and Satire (November 1999) 90. David A. Weisbach, Should the Tax Law Require Current Accrual of Interest on Deriva- tive Financial Instruments? (December 1999) 91. Cass R. Sunstein, The Law of Group Polarization (December 1999) 92. Eric A. Posner, Agency Models in Law and Economics (January 2000) 93. Karen Eggleston, Eric A. Posner, and Richard Zeckhauser, Simplicity and Complexity in Contracts (January 2000) 94. Douglas G. Baird and Robert K. Rasmussen, Boyd’s Legacy and Blackstone’s Ghost (Feb- ruary 2000) 95. David Schkade, Cass R. Sunstein, Daniel Kahneman, Deliberating about Dollars: The Se- verity Shift (February 2000) 96. Richard A. Posner and Eric B. Rasmusen, Creating and Enforcing Norms, with Special Reference to Sanctions (March 2000) 97. Douglas Lichtman, Property Rights in Emerging Platform Technologies (April 2000) 98. Cass R. Sunstein and Edna Ullmann-Margalit, Solidarity in Consumption (May 2000) 99. David A. Weisbach, An Economic Analysis of Anti-Tax Avoidance Laws (May 2000) 100. Cass R. Sunstein, Human Behavior and the Law of Work (June 2000) 101. William M. Landes and Richard A. Posner, Harmless Error (June 2000) 102. Robert H. Frank and Cass R. Sunstein, Cost-Benefit Analysis and Relative Position (Au- gust 2000) 103. Eric A. Posner, Law and the Emotions (September 2000) 104. Cass R. Sunstein, Cost-Benefit Default Principles (October 2000) 105. Jack Goldsmith and Alan Sykes, The Dormant Commerce Clause and the Internet (No- vember 2000) 106. Richard A. Posner, Antitrust in the New Economy (November 2000) 107. Douglas Lichtman, Scott Baker, and Kate Kraus, Strategic Disclosure in the Patent Sys- tem (November 2000) 108. Jack L. Goldsmith and Eric A. Posner, Moral and Legal Rhetoric in International Rela- tions: A Rational Choice Perspective (November 2000) 109. William Meadow and Cass R. Sunstein, Statistics, Not Experts (December 2000) 110. Saul Levmore, Conjunction and Aggregation (December 2000) 111. Saul Levmore, Puzzling Stock Options and Compensation Norms (December 2000) 112. Richard A. Epstein and Alan O. Sykes, The Assault on Managed Care: Vicarious Liabil- ity, Class Actions and the Patient’s Bill of Rights (December 2000) 113. William M. Landes, Copyright, Borrowed Images and Appropriation Art: An Economic Approach (December 2000) 114. Cass R. Sunstein, Switching the Default Rule (January 2001) 115. George G. Triantis, Financial Contract Design in the World of Venture Capital (January 2001) 18

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